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Why Some Courts Won't Edit an Overbroad Non-Compete

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As we've noted elsewhere, there is a tremendous danger in assuming that a court - at least in New York - will throw out the proverbial baby with the bathwater when a non-compete has various provisions that are clearly overbroad.

Naturally, there is a caveat to this rule;

There are times when re-writing the offensive portions of the contract to the heart of the agreement, and will substantially change the entire character and underlying understanding between the parties. That's not a simple matter of "tweaking" an agreement; that's wholesale re-drafting of a contract.

And there are many courts -  even in those jurisdictions that are willing to enforce non-competes - that are unwilling to go that far to save a non-compete.

And that is precisely what happened in Clark’s Sales and Service, Inc. v. Smith and Ferguson Enterprises, a case out of Indiana, where the court declined to "blue-pencil" the agreement (even though Indiana, like New York, does allow the courts to do so), because it would have mandated that the court alter completely the meaning of several over-reaching paragraphs - such as the one that restricted the defendant from engaging in forms of employment that had nothing to do with his job while he worked for the plaintiff.

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